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7.2.4 State approval of arrangements for ATS provision

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Ambox content.png This page displays officially adopted European Commission Guidance Material for the Establishment and Modification of Functional Airspace Blocks (FAB), edition 2.0 of 08 December 2011, following the positive opinion (about Version 1.0) of the Single Sky Committee in its 38th session on 3 December 2010 and additional review processes by the FFPG and SSC (of intermediate Version 1.2) in August and November 2011. See the disclaimer agreed by the Single Sky Committee regarding the non-binding and evolving nature of the Guidance Material and its initial use.
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State approval of Article 10 SPR arrangements between ATS providers

Article Information
Category: ANSPs - Designation and Arrangements ANSPs - Designation and Arrangements
Content source: European Commission European Commission
Content control: EUROCONTROL EUROCONTROL
Article Information
Legal References

Article 10.3 of Regulation (EC) No 550/2004;

Article 8.2 of of Regulation (EC) No 550/2004, as amended by Article 2.4 of Regulation (EC) No 1070/2009;


FAB requirement (Mandatory)

In cases of ANS providers availing themselves of the services of other service providers (as per Article 10.1 SPR):

Article 10.3 SPR:

In cases involving the provision of ATS, the approval of the Member States concerned shall be required.

Article 8.2 SPR: For the provision of cross-border services, Member States shall ensure that compliance with Article 8 SPR and Article 10.3 SPR is not prevented by their national legal system requiring that ATSPs providing services in the airspace under the responsibility of that Member State:

(a) be owned directly or through a majority of holding by that State or its nationals;

(b) have their principal place of operation or registered office in the territory of that Member State; or

(c) use only facilities in that Member State.

Explanatory material (e.g. scope, context, key or relevant issues to be considered etc)

Article 10 SPR provides for the possibility of cross-border service provision as a consequence of one ANSP availing itself of the services of another certified provider and on condition that approval is granted by the Member States concerned in the case of provision of ATS.

This section provides further guidelines to the previous section 7.2.3 in cases of Article 10 SPR agreements/ arrangements among ANS providers, which specifically involve the provision of ATS.

In a FAB, these requirements interact significantly with the requirements on supervision (Article 2 SPR, and the joint designation of ATS providers (Article 8 SPR).

The conclusion of working relationships between ATS providers in accordance with Article 10 SPR involves several issues of importance which go beyond actual service provision. Important legal and regulatory aspects must also be catered for by or in parallel with the respective agreements/ arrangements, such as the allocation of liability; the necessary arrangements for supervision, particularly in cross-border provision of ATS; and agreeing on the rules and procedures to be applied in cases of cross-border ATS provision.

This is partly why an approval must be obtained for such arrangements from the Member States concerned. This requirement should ensure that those Member States will grant such approval only when they are satisfied that the other issues of concern have been properly addressed (e.g. with respect to the required supervision, applicable rules and procedures etc).

The following explanatory material focuses on Article 10 agreements/ arrangements concluded in cases of cross-border provision of ATS. Nonetheless, it is reminded that the legal obligations instated by Article 10.3 apply irrespective of whether those agreements/ arrangements involve the provision of ATS in cross-border conditions or in an airspace that is within the responsibility of one Member State only.

Designation by a Member State of the competent authority/ authorities to issue approvals as per Article 10.3:

Member States should make appropriate legal provisions as regards which is the competent authority responsible for issuing the specific approvals required on behalf of that Member State in the frame of Article 10.3 SPR and in case of ATS provision. In a FAB, Member States may agree that such responsibilities are allocated differently from the previous allocations at national levels.

Considering the high inter-dependency of Article 10 SPR with the regulatory requirements on supervision in a FAB and of cross-border service provision arrangement, in principle, Member States may opt to delegate their NSAs for undertaking this task; or they may use the agreement on supervision in the FAB to assign such task to (an)other competent authority/ authorities in that FAB.

Agreement on harmonised rules and procedures in cases of cross-border ATS provision:

Considering that cross-border ATS is provided on the basis of foreign rules and procedures of foreign providers operating in the airspace of another sovereign State (principle of extraterritoriality), a FAQ is whether cross-border provision of ATS may be implemented under the umbrella only of arrangements concluded as per Article 10(3) SPR without the conclusion of a proper international treaty.

Article 10.3 does not require an international agreement or treaty to be ratified by the Member States concerned. These should make an assessment in accordance with their national law of how to grant approvals for the arrangements between ANSPs, which involve ATS provision. It would seem natural to make such provisions in the legal arrangements (e.g. in the FAB agreement or in another pursuant act) for the establishment and operation of the FAB, enabling the approval of arrangements between the ANSPs in the frame of Article 10 SPR by applying these provisions.

The FAB States should ensure that the legal arrangements for the FAB provide for the necessary clarity as regards the regulatory baseline and harmonisation of rules and procedures. This is particularly important with respect to supervision. Clarifications should therefore be made on the rules and procedures applied in case of cross-border ATS provision, particularly on those rules and procedures that are the product of national transpositions of international requirements complementing EU law.

Complementarities with the requirements on supervision in cases of cross-border ATS provision:

Whenever there is cross-border provision of ANS (including ATS) or such services are planned or in the process of approval as prescribed by Article 10.3 SPR, arrangements must be implemented establishing the cooperation between the NSAs concerned. Without such arrangements in place, the Member State receiving the services and its NSA will not be able to ensure that these are carried out in compliance with the applicable requirements, as the service provider is beyond its oversight jurisdiction.

Addressing and setting-up cross-border NSA agreements/ arrangements in parallel with the approval process of cross-border ATS provision is of particular importance. There is no legal link between the two obligations, but an approval will necessitate the establishment of NSA arrangements/ agreements if not already in place. It is stressed in this context that, in case of unavailability of NSA arrangements with respect to cross-border provision of ATS carried out through ANSPs agreements on the basis of Article 10 SPR, this would constitute a breach of the requirements under Article 2.4 SPR.

Through the State approval of cross-border ATS in accordance with Article 10.3 SPR, Member States should also ensure that their NSAs have the legal possibilities to proceed with establishing the required partnership arrangements as per Articles 2.4 and 2.5 SPR. In any case there should be separate deliverables:

  • An approval directed to the service provider(s). Such approval might very well make reference and be conditional of NSA arrangements in place or to be put in place to ensure that proper oversight takes place with respect to cross-border service provision before the agreement is made effective; and
  • Arrangements/ agreements between the concerned NSAs to ensure adequate supervision of the service provider(s) in a situation of cross-border service provision.

Failure to address properly the necessary NSA arrangements in case of cross-border provision of services being performed constitutes a breach of requirements under Articles 2.4 and 2.5 SPR regardless whether those services require formal approval (and have been formally approved as per Article 10.3 SPR) by the Member States concerned or not. See also the guidelines provided in section 7.3.2 (NSA level agreements).

Complementarities with the designation of ATSPs (or joint designation in a FAB):

Member States, the NSAs and the ATSPs in a FAB should carefully consider the complementarities between the joint designation of ATSPs in accordance with Article 8 SPR and the working relationships concluded by means of Article 10 written agreements/ arrangements.

In principle, designation of ATSPs has a different purpose than the arrangements under Article 10 SPR. An act of designation identifies and allocates responsibility for ATS provision to one or several specific ATSP(s). When that provider establishes arrangements with another provider under Article 10 SPR, this does not change the responsibility towards the designating State.

Article 10 SPR allows for more flexibility between the ATSPs complementary to the joint designation made by the Member States (irrespective of the FAB case, this is also true as regards designation at national level). ATS provision carried out exclusively on the basis of Article 10.3 arrangements (including cross-border ATS provision in a FAB on the basis of Article 10 arrangements) cannot be considered as circumvention (i.e. bypass) of joint designation under Article 8.4 SPR. Responsibility towards the designating Member States rests with each of the designated service provider. When two ATSPs establish arrangements under Article 10 SPR, this does not change the responsibility towards the designating States (nonetheless, this is a fact both in a FAB and at national level). Responsibility cannot be passed on to another provider unless the Member State(s) concerned change the (joint) designation (at FAB or national level).

The FAB States and ATSPs concerned should therefore assess if any of the existing Article 10 agreements/ arrangements involving ATS provision would require a change in the joint designation act, meaning by that a change in the allocation of responsibilities among the ATSPs. If so, the FAB States should amend the respective joint designation. See also the guidelines provided in section 7.2.1 (Joint designation of ATSPs).

Necessary verifications with respect to relevant national law:

For the provision of cross-border services, Member States must verify and ensure that compliance with Article 10.3 SPR is not prevented by their national legal system requiring that ATSPs providing services in the airspace under responsibility of that Member State:

  • are owned directly or through a majority holding by that MS or its nationals; or
  • have their principal place of operation or registered office in the territory of that MS; or
  • use only facilities in that MS;

If necessary, Member States should amend their national law accordingly.

FAB Stakeholder(s) concerned

Member States should make appropriate legal provisions as regards which is the competent authority responsible for issuing the specific approvals required on behalf of that Member State in the frame of Article 10.3 SPR and in case of ATS provision. This is explained in the previous field, including optional arrangements in a FAB that may differ from the previous arrangements at national level.

Necessary and/or optional partnership arrangements, estimated feasibility and value-added

Considering the interaction between this requirement and the mandatory requirements with respect to the joint designation of ATSPs and establishing effective supervision of cross-border service provision, the approval process by the competent authority of any ANSP-to-ANSP arrangements involving cross-border provision of ATS should be addressed in parallel with making the necessary NSA-to-NSA agreements/ arrangements for setting-up effective supervision of those cross-border services.

Each NSA (or competent authority in a FAB in accordance with Article 3(b) of EASA/EC Regulation repealing CR-IR and the ANSP under its supervision should make arrangements (procedures) ensuring that:

  • all new written agreements or equivalent legal arrangements concluded or planned in the frame of Article 10 SPR and involving the provision of ATS are notified to the responsible national authorities(s) for their approval and that approval is granted before such arrangements become effective;
  • existing written agreements or equivalent legal arrangements in the frame of Article 10 SPR are reviewed for their compliance with Article 10.3 SPR and:
    • approval is granted by the competent authorities in accordance with Article 10.3; or
    • the agreements are discontinued.

Approval by the competent authorities of the Member States concerned of Article 10 agreements/ arrangements between ATSPs should give regard to consultation of stakeholders as per Article 10 FR, particularly as regards the opinion and requirements of the airspace users and the social partners.

While the requirements of Articles 10.3 and 8.2 SPR carry particular legal and safety significance, there shouldn’t be any difficulties or concerns with regard to their feasibility once the necessary cooperation and coordination arrangements have been established between the competent State authorities, NSAs and ANSPs concerned by Article 10 agreements.

Impacts or implications of arrangements, e.g. on FAB operations, stakeholders, performance, flexibility etc

Unless this requirement is properly respected, impact may be negative and quite significant on the effectiveness of supervision, in particular of cross-border provision of ATS and as regards impact on safety.

As regards impact of joint designation in a FAB on arrangements between the ANSPs in the frame of Article 10 SPR, Member States maintain all possibilities to cater for their concerns (e.g. supervision, allocation of liability etc) before allowing for arrangements between ATSPs under Article 10.3 SPR to enter into force.

Dependencies and relation to other requirements or conditions

Dependencies and relation of Article 10.3 SPR with the requirements of Article 8 SPR (as regards the designation of ATS providers) and Article 2 SPR (as regards supervision) are already addressed in the fields above.

Recommended actions and supporting evidences

As per item 2.4 of the FAB Guidance checklist.

Reference material for implementation

Link to the related checklist

2.4 State approval of ATSP arrangements in the frame of Article 10 SPR